Although many people believe they will be able to handle their
personal and financial affairs throughout their lifetime, this
is not always true. Accidents, illnesses, advanced age and other
circumstances may cause a person to become unable to take care
of his personal and financial matters. Some people are fortunate
enough to have advance warning or foresight to plan for the time
when they will need help to care for their personal and financial
needs. Others, such as accident victims, are not so fortunate
as to be able to plan ahead.

For the person who can plan ahead, a durable power of attorney,
a durable power of attorney for health care, living will or a
living trust arrangement may provide the help they need. If you
can plan ahead, it is important to choose the best method for your
own particular situation, if you want more information about trusts,
review message number #2402 entitled "What is a Trust?".

For the person who has not made advance plans, a court appointed
guardianship or conservatorship may be the only way to get the
necessary help in caring for personal and financial needs. A conservator
or guardian is someone appointed by the court to take care of
someone's personal needs or their property when they are not yet
adults or have become unable, through age, injury, or illness,
to take care of themselves. A court will also appoint a conservator
or guardian for someone who is likely to be cheated or taken advantage
of by others because of illness or age.

What is the difference between a guardian and a conservator?
Guardians are appointed to take care of minors (children under
the age of 18) and conservators are appointed to take care of
disabled adults. Other than the different terminology, the duties
of both guardians and conservators are basically the same. The
person who is placed in the care of a guardian or conservator
is often referred to as the "ward."

A guardian or conservator may be appointed to take care of someone's
day-to-day personal needs - a "guardian or conservator of the
person" - or to take care of financial affairs - "guardian or
conservator of the estate". A guardian or conservator is most
often a family member or friend and, in most instances, will be
responsible for both the estate and the person of the ward. If
a guardian or conservator is needed just for the estate, a financial
institution such as a bank may be appointed.

The conservatorship or guardianship can be a temporary arrangement
- that is, a person may be seriously injured in an accident and
need someone to care for his affairs until he recovers. It can
also be a permanent arrangement - as in the case of a person of
advanced age who is unable to continue managing personal and financial
affairs.

A guardianship or conservatorship is obtained by filing a "petition"
with the court. Anyone can petition the court for the appointment
of a conservator or guardian and nominate a specific person or
persons to serve as conservator or guardian.

Before a conservatorship can be established for a disabled or
elderly ward, the ward must be proven unable to manage their own
affairs. If someone is attempting to have a conservator or guardian
appointed for you and you feel that you do not want or need a
conservator or guardian, you should immediately contact an attorney
who can assist you in protesting the appointment. If you do not
protest, you may lose important rights and privileges with respect
to managing your affairs.

In some instances, the guardian or conservator will be entitled
to a fee and the court will decide the amount of money the conservator
or guardian will be paid. The court will also set limits on the
duties and powers of the guardian or conservator according to
the needs of the person for whom the guardian is responsible.
The conservator or guardian is required by law, in most cases,
to file an annual report of all receipts and all payments on behalf
of the sick or disabled person.

A conservatorship or guardianship may not be the best solution
for every case. A living trust, power of attorney or other arrangement
may be better. The problem with other arrangements, however, is
that a disabled person may not be legally competent to create
a trust or other arrangement at the time it becomes necessary.

The important thing to remember is that future difficulties may
be avoided by planning in advance for the possibility of disability.
One important feature of the conservatorship and guardianship
law in Tennessee is that you are allowed to declare in advance,
in a written document, who you would like to serve as your conservator
or as the guardian for your minor children. If you are concerned
with making these types of decisions now, you should consult an
attorney for advice on which method of planning will best suit
your individual needs.